Two primary schools in Wick in Caithness – Hillhead and Wick North, were joined in a single closure proposal paper from Highland Council. Both were to close, with both sets of pupils combining in a single new school to be built at Wick North.

Wick North needs a new school and is happy with the proposal. Hillhead is educationally, structurally and communally in good fettle and has a school roll at 81% capacity. It neither needs nor wants to close.

Yet the proposal paper carrying both closure proposals has made them incompatible siamese twins, bound together but pulling in different directions.

Hillhead has fought hard to stay alive. In its resourceful campaign it discovered that the key statutory instrument on which the closure of a schools rests – the Educational Benefits Statement, was not legally competent.

In law, ‘ the educational benefits should be at the heart of any proposal to make a significant change to schools’.

Highland Council had copied their Educational Benefits Statement wholesale from one prepared by another local authority, Angus, for a different school, Timmergreens, in a different place, Arbroath.

Of course it couldn’t fit and was full of errors of fact. Hillhead is not Timmergreens. The new school described, proposed for Timmergreens pupils to transfer to, was very different from the new school proposed for Wick. The facilities and costs were therefore out of kilter.

Nevertheless – and knowing better than anyone what it had done – Highland Council went on, at the end of the consultation period, to prepare its final consultation report and take, what was in these circumstances, an unlawful decision to close the schools.

Its consultation report, also unlawfully, made no reference to what was at once a signal omission – no competent Educational Benefits Statement existed; and a signal inaccuracy – the Educational Benefits Statement presented was inevitably inaccurate.

To establish Highland Council’s failure to fulfill its statutory obligations in this key matter, we need only first point to a few incontrovertible facts.

The Educational Benefits Statement is ‘at the heart’ of a proposal to close a school and of the decision-taking process which, at the end of the statutory consultation period, leads to the closure or retention of a school.

The governing legislation, the 2010 Schools (Consultation) (Scotland) Act, requires one school-specific Educational Benefits Statement to be prepared in respect of each individual school proposed for closure.

Highland applied a single Educational Benefits Statement, already copied from elsewhere, to both of the schools in this proposal – and indeed, for good measure, to two other Wick schools it was proposing to close at the same time,

The copied statement was clearly and formally entitled ‘Educational Benefits Statement’; and was presented as such in the proposal document without any qualification of any kind of its intended function in that proposal.

This ‘Educational Benefits Statement’ and the closure proposal it could not support, were in every way utterly outwith the law. This disqualifies, without equivocation, the decision that followed from this situation.

When the position was made public, to hilarity and disbelief, the Education Secretary called-in the decision to close the schools, on these principal grounds, referring to Section 17 2 (a) and (b) of the Schools Act:

‘(a) in a significant regard to comply with the requirements imposed on it by (or under) this Act so far as they are relevant in relation to the closure proposal, or’

‘(b) to take proper account of a material consideration relevant to its decision to implement the proposal’.

‘Calling-in’ a local authority decision to close a school is a statutory process by which Scottish Ministers ‘effectively remit to themselves the closure proposal/decision’ for investigation, review and determination.

It is our purpose in this article to show that what Scottish Ministers then did was itself ultra vires (beyond their powers under the 2010 Schools Act) and therefore illegal; that it was also unreasonable; and that it was demonstrably unfair.

These terms -’illegal’ (or ultra vires), ‘unreasonable’ and ‘unfair’ – are central to the core concerns of the process of Judicial Review, the only – and expensive – means of access to potential justice for schools that feel they can show that they have been subject to a mis-taken decision.

What the Scottish Government did next

The determination made by Scottish Ministers is this case was highly unusual and founded on an action for which we can find no statutory authority.

The role of the Scottish Ministers is to investigate, review and determine. What they did in this case was ultra vires. They made a creative intervention in the process.

They made no attempt – they could not – to accept as legally competent the Educational Benefits Statement presented unequivocally as such in the Highland proposal.

They found a passage of text elsewhere in the proposal – relating to an options appraisal exercise which, in considering ‘all viable alternatives to closure’, is a qualifier to progress a closure proposal to consultation. As such it is of lesser statutory significance than is the key Educational Benefits Statement.

Scottish Ministers then proceeded to bestow the statutory status of ‘Educational Benefits Statement’ upon this passage of the proposal – and to pronounce themselves ‘satisfied’ and ‘content’ that it fulfilled the statutory obligations of Highland’s closure proposal in regard to the Educational Benefits Statement.

In the letter conveying this unprecedented determination to Highland Council, Scottish Ministers clearly lead Highland Council by the hand to the passage of its proposal which Minister have chosen to promote to and accept in a status with statutory responsibilities it was not designed to carry. The options appraisal passage in question was not written as an Educational Benefits Statement. It had not been claimed by Highland to fulfill such a role. It was not presented as such in the proposal paper. It had not been considered in this capacity by any party involved during the consultation process which produced the closure decision.

The letter from Jonathan Moore, Head of the Schools Infrastructure Unit at the Scottish Government’s Education Department (which acts as the Education Secretary’s call-in team) to Hugh Fraser, Education Director at Highland, says (the emphases are ours):

‘Ministers are of the view that using wording from an educational benefits statement prepared for another local authority was unhelpful. However, they note this was prepared as a summary and following further investigation are satisfied that a detailed Educational Benefits Statement was written specifically for the schools in question. This is contained in the option appraisal report which is referred to in paragraoph (sic) 2.2 of the Proposal Paper which was available to the public throughout the consultation process. As a result, Ministers are content that the Council has fulfilled its statutory duties in this regard. However, in coming to this view, Ministers wish to remind the Council of the importance of ensuring clarity in all aspects of the educational benefits statement so that consultees understand fully the details of the proposal and the specific educational benefits expected to accrue from it.’

On this principal basis, Scottish Ministers consented to Highland’s closure of Hillhead and North Wick schools.

Judicial Review – the key issues

Judicial Review is the sole recourse in law for any party objecting to a decision reached on a school closure proposal.

Judicial Review is not an appeal court. It is more interested in the process of decision making than in evidence for or the result of the decision.

The grounds for Judicial Review have been described by Lord Diplock in a key case ( Council of Civil Service Unions v Minister for the Civil Service, [1985] ) as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’.

‘Illegaliity’ is often referred to as ‘acting ultra vires’, or beyond the powers conferred by the relevant statute. It is concerned with the correctness of the decision taking body’s understanding of the relevant law; and with the correctness of the decision consequently taken.

‘Irrationality’ is often referred to as ‘unreasonableness’, often a key issue at Judicial Review under what is known as the ‘Wednesbury’ precedent. It is interested in situations where it can be shown that ‘a decision was so outrageous in its defiance of logic that no sensible person applying their mind to the question to be decided could have arrived at that decision’.

‘Procedural impropriety’ is often referred to as ‘unfairness’, a breach of natural justice. It covers ‘situations where there has been a breach of procedural rules laid down by the relevant legislation or a breach of the common law rules of natural justice or there has been procedural unfairness’.

A seminal case affecting the process of Judicial Review was R v Secretary of State for Scotland, 1999, from which the following guidelines on Judicial Review emerge.

‘Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case.’ (R v Secretary of State for Scotland 1999)

‘ It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as matter of fairness it ought to have observed. ‘ (R v Secretary of State for Scotland 1999)

‘As regards the decision itself it may be found to be perverse or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision- maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from ordinary appeal, the court may not set about forming its own preferred view of the evidence.’ (R v Secretary of State for Scotland 1999)

The Hillhead case for Judicial Review

We contend that Scottish Minsters’ compound act of replacing the unable material formally presentedl, without any qualification, as the Educational Benefits Statement in the Highland proposal paper with material from another section of that proposal paper, serving a different purpose and not written, not intended, not presented and not claimed to be an Educational Benefits Statement was ultra vires – or illegal.

We contend that Sottish Ministers consequent accepting as competent the statutorily significant status they had themselves retrospectively conferred upon this material was perverse and therefore unreasonable.

We contend – and this is incontrovertible – that the retrospective conferral of the statutorily authoritative status of Educational Benefits Statement upon material not intended or identified as such during the statutory consultation period, involved both an act and a failure to act which has had the effect of altering the rights of the parent council of Hillhead school; and deprives them of a benefit or advantage they have had and were entitled to continue to have (the service of their school to their children).

The act of Scottish Ministers which has altered the rights of Hillhead parent council is the ultra vires and retrospective conferral of the status of Educational Benefits Statement upon material not intended or presented as such during the statutory consultation period. The consultees had neither reason nor opportunity to address this material as an Educational Benefits Statement during the consultation period, as they would have needed to do. While the material in question was, as the Moore letter, above says, ‘ available to the public throughout the consultation process’, it was not available during that process in the role retrospectively conferred upon it.

In fact, had the retrospectively promoted options appraisal been, eccentrically, presented in consultation as an Educational Benefits Statement, the Hillhead consultees would have been able comfortably to deny its ability in that capacity. The options appraisal, for its reasonable purposes, scored both schools as one – a process not acceptable as the required Educational Benefits Statement specific to each school; a scoring demonstrably disadvantageous to Hillhead; and a scoring arrived at by a process to which, in a highly unusual and courageous act, head teachers from the area objected, on substantial grounds, in a signed letter to Highland’s Education Department.

The failure to act of Scottish Ministers which has had the effect of altering the rights of the parent council of Hillhead school – and which deprives them of the benefit and advantage they have had and were entitled to continue to have (the service of their school to their children), was the failure to refuse consent to Highland to close the school on the straightforward grounds the Act lays down. This is that the Educational Benefits Statement presented in Highland’s closure proposal was legally unable and that Highland Council was therefore in breach of its statutory obligations in this key respect.

We contend that the depriving of the Hillhead consultees of their rights and advantages in this respect and in this manner, was procedurally improper in Lord Diplock’s authoritative definition and has therefore been unfair to these consultees.

We contend that the retrospective conferral of the statutorily authoritative status of Educational Benefits Statement upon material drawn from the statutorily less significant options appraisal was an unreasonable act giving rise to an unreasonable decision.

We contend that it is unreasonable to refuse to accept as an Educational Benefits Statement what is formally presented as such in a local authority’s proposal paper.

We contend that it is unreasonable to interpret as ‘a summary’ (of what exactly?) a distinct proposal element formally presented as the Educational Benefits Statement that is required to feature strongly in any proposal – and that it is especially unreasonable to do so in the absence of any other element so titled in the proposal.

There are several other breaches and improprieties in the Scottish Minister’ determination in this case. For example, foremost amongst these are:

Scottish Ministers failed to identify and investigate Highland Council’s failure, as described in 17 2 (b) of the Act: ‘to take proper account of a material consideration relevant to its decision to implement the proposal’. Highland did not attempt to consider the material consideration of the viable alternative of retaining Hillhead school and building a smaller new school for and at North Wick.

We contend that Scottish Minsters acceptance that the retrospectively re-classified material ‘was written specifically for the schools’ (our emphasis) ignores the specific statutory obligation upon a local authority to prepare an individual Educational Benefits Statement for each school in a multiple closure proposal paper. As such, we contend that this acceptance of function was ultra vires, or illegal.

We contend that Education Scotland was in breach of its own statutory obligations to examine the Educational Benefits Statement; and to draw attention to a significant inability in the Highland proposal in this respect – of which they had specifically been made aware. The Hillhead consultees had notified Education Scotland, in writing, of the legal inability of the Educational Benefits Statement presented. Education Scotland made no more than passing and misleading reference to this in their own report, saying merely: ‘In a written submission, one parent expressed serious concern that the council’s consultation proposal drew heavily on a proposal prepared by a council elsewhere in Scotland’. This misidentifies (why?) the unable Educational Benefits Statement as ‘a proposal’ and in doing so seriously misrepresents the statutory significance of the situation. Education Scotland are, by stature, required to focus in their report on the Education Benefits Statement. Their report is an authoritative element of the process leading to the eventual decision by the local authority. We further note that Education Scotland too had neither reason nor opportunity to address at the due time the options appraisal material in the guise of Educational Benefits Statement which Scottish Minsters chose retrospectively to confer upon it.

Overall, we contend that Scottish Ministers’ decision making power has, in this case, not been properly exercised for it’s lawful purpose of scrutiny and adjudication.

We contend that no one could reasonably come to the conclusion that a retrospective conferral of a new – and statutorily significant identity upon material the consultee had no opportunity to address in that guise, was legally competent or fair to the consultees.

We contend that Scottish Ministers’ failure to act in proper consideration of the material formally presented by Highland Council as the Educational Benefits Statement for the proposal denied the consultees their legitimate expectation that their school would be reprieved from closure.

We further contend that Scottish Ministers process of coming to their determination in this case was unfair, in line with Lord Diplock’s definition of fair minded conduct in decision taking. It is judged that:

‘Where a dispute requires to be resolved, the body responsible for deciding the matter is expected to act according to the rules of natural justice. Natural justice means acting fairly between the parties, allowing all sides to be heard, and taking a decision impartially. Acting fairly between the parties means allowing both sides the opportunity of presenting their case, and in certain circumstances also to allow an opportunity for cross-examination of witnesses so as to raise relevant issues and to test the evidence. This can mean that there is a right to be heard before a decision is taken.’

‘Generally though a right to be heard will depend on the importance of the matter to the individual, and the interest they have to protect. A person who is adversely affected by a decision will usually have a right to make representations, either before the decision is taken or after in order that there is an opportunity to modify the decision, or both.’

‘ In order to make this right meaningful they should be informed of the gist of the case they have to meet.’

‘The test is not whether an unjust result has been reached but whether there was an opportunity for injustice to be done.’

We therefore contend that the Hillhead consultees have met with signal unfairness at various stages of this consultation and decision taking process, both at the hands of Highland Council and at the hands of Scottish Ministers.

We contend that, in the light of all of the matters laid out above, there is a strong foundation in law for Hillhead parent council raising a case under Judicial Review against Scottish Minsters who, through the remittal to them upon call-in of the closure proposal and the decision, are ultimately and wholly responsible.

Hillhead parent council and Judicial Review – justice reserved for the wealthy

Having a powerful case for Judicial Review does not open the ability to exercise the right to justice.

Judicial Review is, for impoverished parent council’s in deprived areas, as is the case with Hillhead school, an expensive process beyond reasonable contemplation.

Our offer to the parent council to assist in a fund raising campaign was met by two additional and major problems for Hillhead parent council.

These problems are the direct result of Highland Council’s failure to give proper – or any – attention to the material consideration of retaining Hillhead while closing North Wick and building a smaller new school for Wick North alone. The new school proposed is, in any case, to be located at Wick North.

These problems are also the direct responsibility of Scottish Minsters’ failure to require Highland Council to investigate this option. It is ironic that, in its eccentric determination to elevate Highland’s options appraisal to the status of Educational Benefits Statement, Scottish Ministers failed to notice than all of the valid alternatives to closure had not been appraised.

Hillhead parent council feels that, by going to Judicial Review, it would be seen in Wick as obstructing the real need of Wick North for a new school.

It would therefore attract little local support in fund raising; and it fears the prospect of what we can only describe as ‘monstering’.

This is a painful example of the inflicting of undeserved compound jeopardy.

Not only have Highland Council and Scottish Ministers serially taken a closure decision we contend is not supported by the law; but, in failing to act as the 2010 Schools Act requires in the consideration of all viable alternatives to closure, they have effectively disabled Hillhead parent council from even attempting to raise the substantial funds they need to go to Judicial Review.

Hillhead is a good small school in a remote and culturally important Scotttish town. But school, town and area are not well off and are below the national radar in influence.

The consequent problem is ‘Who cares?’

In pragmatic politics, there is neither much cost nor much benefit in caring that real wrong may have been done to the children, parents and community of a primary school in Wick.

But justice and civility – showing regard for others – are the keystones of responsible democracy.

Is there an advocate out there who might offer to represent Hillhead school on the basis of the case outlined above – or better – and without charging fees and expenses?

That would restore a faith in humanity that Hillhead parent council now finds hard to summon.

NOTE: Tomorrow morning we will publish proposed solutions to the situation now obtaining with Hillhead School and with the precedent set by Scottish Ministers in their Wick determination for the use of the 2010 Schools Act .

I wonder if any consideration has been given to whether Legal Aid is a possible route to fund judicial review. I am not a legal minded person so do not pretend to know the ins and outs of the criteria for qualification (I dare say someone out there could advise accordingly) however something in the back of mind tells me that an application for Legal Aid by a group (that being two or more people Simon) would not be allowable; however it may be possible for a single parent to apply for legal aid. If this is the case then it would need that one applicant to qualify on financial grounds so (and excuse how crass this sounds) you would be looking for someone on benefits with low, or no income.

I may be totally incorrect on this and if so I apologise, just throwing it out there as a suggestion.

It does appear inherently unfair that Angus Council can access public funds to take a decision to judicial review but a group of parents with what appears to be a pretty credible argument cannot.

We got advice about Legal Aid when the school closures were in progress and your assumption about groups applying is correct. Quite simply they don’t qualify, it comes down to individuals and an individual meeting the criteria (low income etc) would be able to take up the case themselves, but not as part of the group.

My understanding was that (and I stress this is not information from a legal source) is that an application would need to come from a single applicant however most lawyers would not mind if that applicant was accompanied by additional people during meetings to discuss the issue.

Dirty work at the crossroads?Gaggle of clowns? Where does it go from here? Interested to see what cards come out of your sleeve tomorrow.

My head’s sore staying in touch with this argument but I can see why legals have to be this way..

It stands up tho, so – yeah – respect and all that. You must have had a hell if a team on this one.

Something’s puzzling me. Argyll’s ed-heads have only just surfaced – but nothing on the issues only the peripherals? Education’s their thing but this must be four or five articles you’ve done on this topic and they must be interested in it but not a word out of one of them.

And where are the gurus who’s praises you’re always singing, the rural schools folk?

All a bit funny.

Sorry about this – but I wondered if you might have got this wrong (although I couldn’t see it)and I thought maybe if you were wrong that was why they were all respectfully quiet So I phoned someone I know well up the legal fraternity and got him to read this. And you’re on the money. In fact you got a pretty impressed verdict and he’s reading the other ones tonight.

It’s all politics, Blair D. Mikey boy Russell (all steam and hot water but no tea) at the heart of this cock up. And ARSN are SNP groupies who’d shaft schools for the cause. That’s why they’ve suddenly taken the vow – exceplt they found another wee nest to pass the time in – renewables. God help us, that lot can renew there own wind on a quiet day. This Wick schools act thing shows them up for what they are. Well named ARSN. I sometimes had a sort of respect for them even if theyre up tthemselves but theyre just the same as the rest. Come on Newsie tell us whats going on and A Blair’s Q, Is anyone but Blair and me reading this.

Oh dear God, not another Splinter Simon – the real Simon must be getting pretty fed up by now with all these doppelgangers hanging around him and sullying his good reputation.

Well done, though, for spotting that some ARSN members take an interest in other fields – I’m sure it helps to illustrate just what rounded characters we are.

Of course, not everything that ARSN says or does appears on here and as Integrity says, you can be sure that we are taking a keen interest in this issue, and the possible ramifications it has for Argyll in the longer term if it is seen as a precedent.

I’ve been quiet of late as I’ve been recovering from eye surgery, not for any other reason. We RSN folk do comment on a variety of topics because we are well rounded, multi-dimensional individuals with wide interests (as opposed to the “Simons” whose interests appear to be exclusively slagging off the SNP and anyone or anything that has the temerity to criticise the leadership of ABC).

As to this specific issue, SRSN have it well in hand and FA seems to be on the money: this is a cock up that shouldn’t have happened and I am sure Mr Russell is asking stern questions of his civil servants as to how this came about. Action has already been taken to ensure that this is not seen as a precedent by local authorities and I for one would welcome a judicial review of the situation.

As to Hillhead itself, I cannot directly comment on the case as I don’t know the area. As FA suggests, there is a delicate balance here between the rights of the Hillhead community to keep their school and the people in Wick North who apparently really need a new school. That said, it is the policy of ARSN (and SRSN) to offer support to any parents council who wish to oppose the closure of their school and if there is anything we can do to help the PC at Hillhead we will (though they seem to be doing rather well on their own!).

As to ARSN being SNP groupies willing to shaft schools for the “cause”, this is the usual rubbish emanating from the “Simons”. As has been made clear on numerous occasions many of the more prominent ARSN’sts are not SNP supporters and we have consistently attacked the Government where we think they got it wrong. Robslee is a case in point: as I stated at the time this was a inexplicable decision as I could see no educational benefit in the proposal. This is something that we hope the Commission will straighten out and if it doesn’t then we will lobby the Government directly to get it sorted without fear of favour.

fanofsimon – Lol, that’s brilliant. I can’t help but imagine someone, somewhere is going “ssssh, ssssh, now listen! When you are in the castle don’t do anything it’s just too unsafe, we might get caught. When you leave the castle, remember the code word is ‘Simon’. Have you all got that?”

Not sure about the ‘only just surfaced’ reference as people from Argyll have commented a number of times on previous articles regarding Hillhead and three times on this article before yours. Also worth noting that the article was posted today and people tend to be at work during the day.

That aside the advice provided by your friend in the legal fraternity is indeed encouraging and I wonder if you would be kind enugh to contact them again to ask about the matter I have suggested above (which CSB responded to) to confirm whether our understanding is correct.

Worth adding that most of the Argyll people are not ‘ed-heads’ and not professionally legally minded. We are just parents who were thrown into this by the shenanigans of our Council and made it our responsibility to learn quickly.

For BlairD and fanofsimon: Each of the articles in this series have been the best read story in the 24 hours following its publication, some for longer than that. We have noticed that there are two types of article we publish which are universally very well read but do not attract much comment. One is heavyweight material as with the series of articles on the legal difficulties created for the 2010 Schools Act following Scottish Ministers’ Wick determination. The other is photojournalism material on places, events and businesses in Argyll. Both are invariably very heavily read but little commented. At a guess, the first type demand the sort of serious engagement that takes readers to the coffee mug rather than the comment button; where the second are somehow complete in themselves, with people enjoying them but not feeling the need to add a lot.

“doc” -first of all – hope your eye surgey went well and that you make a full recovery.. Secondly, “this is a cock up that shouldn’t have happened and I am sure Mr Russell is asking stern questions of his civil servants as to how this came about” What utter rubbish!! The last time Mike Russell agreed to close a school Robslee you defended him then saying words to the effect of ‘he had no option’. Now this time it’s ‘he’s stupid and not in control of his department’.

These schools should never have closed as the Act (brought in by the SNP) used to close them is flawed. You guys are making a right arsn of yourselves trying to defend Russell. Just how many more schools will he have to close until the penny finally drops with you chumps? Or are you just waiting until after the election…..:)

Thank you for the wishes for a full recovery – certainly well enough to detect eye wash when I read it.

I noticed you said nothing in praise of Mr Russell when the Muirfield and Timmergreens decision came through.

As has been said many a time on here, you don’t give a flying cuss about any of these schools. Any excuse to bash the Nats and if you have the opportunity to take a swipe at those nasty degenerates in ARSN who showed your beloved Council Leader and his rag bag supporters to be nothing other than money wasting poltroons, then so much the better!

As you well know, you are (as usual) twisting my words. On Robslee my point was that the Act does not allow the Minister to oppose a closure on grounds other than a failure to adhere to the Act’s strictures. The fact that Mr Russell allowed ERC to proceed with the closure meant that the advice he had received was that ERC had complied with the requirements of the Act and he had no grounds upon which to refuse the proposal. What I said at the time was that this was an astonishing state of affairs as the Robslee proposal had no obvious educational benefit to either the children at Robslee or those at Giffnock. This showed that the Act was not working as intended ( at least by the defenders of rural schools) but Mr Russell had already acted on this in setting up the Commission.

The situation with Hillhead is entirely different. There was no unequivocal evidence that ERC had failed to comply with the Act whereas, as FA has laid out in exhaustive detail, Highland made a complete bourach of their proposals and Mr Russell’s department should have rejected the proposals for this reason, regardless of the underlying “rightness” of the overall proposal or parts therein.

The cock up in not doing this was compounded by the cack-handed attempt to excuse Highland Council’s failure to produce a competent EBS. What was going on in Education Scotland I don’t know but I am told that there is an acknowledgement within the Department that this was a cock up and that they have taken action (by writing to all the local authorities) to ensure that this does not constitute a precedent.

Ministers are responsible for the actions of their civil servants so Mr Russell deserves a skelp on the wrist for this state of affairs (and FA has already delivered a quite blistering condemnation). However, I for one, have confidence that Mr Russell’s heart is in the right place.

ARSN are working within the Commission and with SRSN to attempt to ensure that we achieve a clear and effective protection for rural schools that removes the imperfections of the Act and its interpretation. I have no doubt that this is what Mr Russell also seeks and so we support him in his endeavours. Should we become disabused of this notion then ARSN will oppose him.

However, we are very unlikely to do so at your behest as your motives are too naked to be given any credibility.

The Education Secretary is already facing two Judicial Reviews on his determinations in school closure cases. The first in the Court of Session (in court yesterday and today) has been raised by Western Isles Council over their overset decisions on four simultaneous closure proposals. It is instructive to read their reasons for going to Judicial Review: http://www.cne-siar.gov.uk/press/120306.asp The second will be in the Court of Session on 3rd May, a deeply ironic coincidental date (2012 local authority elections) and has been raised by Angus Council. This relates to the Education Secretary’s determination which overset the Angus decision to close Timmergreens and Muirfield schools in Arbroath, transferring pupils to a new school on the town bypass.

Having read Western Isle’s reasons for going to judicial review, I’m failing to see how they will achieve this through the legal process which will only determine if the Minister acted legally within his powers. They also decided to go for judicial review in the heat of the moment rather than after having an extensive dialogue with the SG (as has Angus).

SRSN are new to this process and we are reading everything we can to get up to speed. We have taken a couple of cases to the point of judicial review under the old Act but have never got this far under the Schools Consultation Act. We are endeavouring to get hold of all of the papers and legal answers given in both the Western Isles and the Angus Council cases. We should have these very soon. While we are still learning it has to be said that we have to agree with most people on here who have commented that newsroom has done her homework and that the article appears to be “on the money”. The comments about the cost to pursue what should be an open and shut case are particularly apposite. There should not be access to justice only for the rich.

I agree with Sandy entirely (not a lot new there). There is no way that the right of appeal should only be open to the rich (or Councils). One of our parents made this very point as many on Angus Council ignored public opinion (again) to forge on with costly plans for Judicial Review. Would our Council have been fair-minded enough to offer to pay the legal costs for a parent-led challenge had the Scottish Government given the new school in Arbroath the green light? I think not. This should, not, however lead to complacency. Councils would do well to remember that parents come from all walks of life, all professions and have a wide-cross section of skills. Above all, they believe in what they are fighting against which is more than can be said for those who propose the school closures. Turning to Wick, specifically. It appears clear to me that Hillhead has been proposed for closure purely and simply due to geographical reasons. Had that school been ten miles further away no sane Council would even consider a closure proposal. I don’t think it’s fair to deny other needy schools the opportunity of a new facility, but at the same time I fail to see how this should mean that all schools in the area should be closed. Surely a little bit of investment would bring a B/B school operating at 81 per cent capacity up to A/A? A smaller primary school could then be built instead of a merged one and without being a building expert I would hazard a qualified guess that the cost of refurb of one satisfactory building+smaller new build (which would in theory have much more outdoor space) would not outweight one merged new build? Unless of course they want the land at Hillhead to build houses on…

Ewan – As a general principle (and not knowing the specifics of the Hillhead case), I would go further and say that if a school is graded B/B (‘Satisfactory’) then the priority is adequate maintenance and keeping it open. At a time of capital constraint, I think most people would consider that to be a reasonable limit.

Raising all schools to grade A/A is certainly a noble aspiration, but Argyll & Bute claimed this would cost £61.72 million, and the unfeasibility of this was used as a key reason for closing a large number of schools, the vast majority of which were grade B.

Tim is absolutely correct. There probably isn’t a COuncil in Britain who is actively looking to get their school estate up to A/A standards. B is considered perfectly acceptable and there are far higher priorities for capital investment. A&B’s £61.72m figure wwas entirely misleading as they would never have any intention of implementing a programme to achieve it – it was simply thrown in as a scare tactic to convince people of the need for closure.

When challenged by opposition Councillors on this amount and how it was arrived at, didn’t Cleland Sneddon say there was actually no formula or basis for how they arrived at that amount and that it was a ballpark figure?

I suppose the council must have used the same formula when they decided to remove the janitors from four community centres. The council couldn’t say how much would be saved in each individual centre, but were quite confident in the overall sum.

Maybe things are different nowadays, but when I was a wee lad we had to demonstrate a thorough understanding of a maths question by showing the calculations that resulted in our conclusion. It also made cheating quite impractical.

Oh, dear me! I wonder if that is the real reason why A and B Council are so averse to this procedure!

Mr Russell hasn’t shut a school in his life: Robslee was shut by ERC and Hillhead may be shut by Highland. Unnecessary school closures whether sadly successful or not are the responsibility of local authorities and voters will remember that in May. I know why you are desperate to suggest otherwise but that is the truth.

As to your other comment below: you are correct that it is hearsay in that I was not at the meeting but I was told by someone who was. Hearsay yes but hardly groundless.

Have you really nothing better to do than keep issuing these very cheap and ineffectual shots?

We know that legal argument is fine, close focus and tedious to read but in trying to do a decent forensic job on what is a serious mess, it is an imperative.

The legal fact is that the act of calling-in a local authority decision to close a school has the statutory effect of ‘Scottish Ministers’ remitting to themselves – or taking upon themselves – responsibility for the closure proposal and for the decision taking that – whatever way it goes – descends from that proposal.

So the Education Secretary is directly, both practically and legally, responsible for every school closed on a call-in determination of consent.

That includes Robslee, Hillhead and Uyeasound. It very nearly included Muirfield.

The decision to close a school is made by the local authority after the statutory consultation and voted on by the local councillors. This is the decision to close or retain the school.

Ministerial call in is not a final judgement on the merits of the closure. What the call in does is give the Minister the opportunity to consider the process that has led up to the LA’s decision and in particular to determine if the consultation process was competent under the Act.

Even if the Minister does not give permission for the closure to proceed, there is nothing to stop the LA bringing forward a new proposal to consult on closure and if they get it right then there is nothing the Minister can (legally) do to prevent the closure.

This is the reality of the implementation of the Act and the fact that the provision of school facilities is the remit of LAs and not the Scottish Government.

I know from conversations with Sandy that he at least felt there was a catch all provision in the Act to allow the Minister to prevent closures where the proposal is legally competent but daft. However, this is not the advice coming from the SG’c lawyers. As I pointed out some months back, teh Ministerial call in procedure does not give parents and communities the protection they believed it did and this needs to be both recognised and changed.

As can be seen by the recourse to judicial reviews by both Angus and the Western isles, there are those who believe that Mr Russell already exceeds his authority whereas you criticise him for not blocking (at least temporarily) Robslee, Uyeasound and now Hillhead. A rock and a hard place!

The ministerial call in exists to block a local authority’s decision to close a school that has followed a legally incompetent consultation. It does not allow the Minister to judge on the relative merits of the closure proposal.

What I will give you is that approval for the Highland closures, of which Hillhead is part, should not have been given as the proposals were clearly incompetent as they did not contain an EBS. This is something that Mr Russell should either explain or hold his hands up and admit a mistake was made.

Turning to the judicial reviews: Western isles are basing their case on the premise that the closure proposals were all effectively the same so why were some accepted and some rejected? The answer is that the proposals may have been the same but the schools were not. I am fairly certain that the review will conclude that Mr Russell acted within his powers under the Act.

In the case of Angus, I am surprised they have even considered taking the Muirfield and Timmergreens decision to court. By their failing to comply with the legal requirements of the Act the decision will again be that the Minister acted within his powers.

The one judicial review that would go against the Minister would be Hillhead. The decision was perverse as the proposals from Highland clearly did not comply with the Act (which is why they were called in). I’m sure someone has already put in FoI requests for the correspondence between SG and Highland on this issue and it will be interesting to see if it was Highland’s officials that suggested the Caledonian exercise could be used as a surrogate EBS or if this came from the call in team.

Newsroom: one of the endless attraction of the law is that it can always be argued! Whether either of us are qualified to argue it is a mute point because if we are not then it rather stifles the discussion.

Nothing in the Act convinces me that the Minister closes schools, certainly not directly nor by collusion with the decision of a local authority. In the call in procedure the Minister does not judge on the merits of the case for closure (though I am sure he has his own opinions). The Minister’s powers relate solely to the determination of the competence of the procedures followed (including whether material facts were properly addressed during the consultation). Anything else is ultra vires. The school is closed by the decision of the LA. Ministerial call in may delay (perhaps indefinitely) that decision. The Minister does not sit in Olympian judgement over the fate of individual schools.

The Law is not like the laws of physics where we can define 5 sigma levels of certainty to our understanding. The Law is all about interpretation that, like Schrodinger’s cat, is only crystallised into some clarity when examined in a court of law.

The interpretation I have given is the one being followed by the Scottish Government. Other interpretations are possible: Highlande and Angus (and COSLA) believe in a much more truncated interpretation of the Minister’s powers; you believe that he could make a much more expansive interpretation of his powers. But what matters is the operational interpretation as that is what is driving things at present.

Regarding the call in team, I can see the logic of having this in the infrastructural team but I strongly agree that the lack of educational expertise makes this a nonsense when the core of the Act is the Educational Benefit Statement. The unit itself recognises it does not have the appropriate experience and relies instead on HMIE for guidance (they said as much to one of the school’s groups – I think it was Robslee). HMIE on the other hand don’t feel that they have any grasp of the economics. I think this may be at the root of this problem of an EBS being accepted if it is there even if it is a pile of mince.

I think the call in team should be enhanced in its expertise and you are also correct in arguing that potential conflicts in role between the infrastructure team’s wider remit and that of the call in team need to be addressed and that is best achieved by separating the two.

Of course, it was never anticipated or intended that the call in team would have been quite so busy.

This sort of statutory setting of process is not open to question and actually has an irrefutable logic.

And none of the qualified sources we talked to doubted the clarity of the Act in the shift of responsibility it describes at call-in. The legal phrase is ‘remit to themselves’ upon call-in; and there it no mention in any part of the Act, the Explanatory Notes and the Statutory Guidance of the responsibility ever moving back to the local authority.

The legal refutation of what you are arguing is that if the call in decision was in some way remitted back to the local authority, they could only object by taking themselves to Judicial Review.

The only point where the local authority legally owns the decision to close and is therefore open to challenge, is when, at the end of the statutory period of three weeks, Scottish Ministers consent to the closure decision without calling it in – which is what has happened with the majority (the small majority) of schools.

In the case of Hillhead School in Wick, where having remitted the matter to themselves, Scottish Ministers took the decision to close the school, it is the Scottish Ministers’ decision on which Hillhead would petition for Judicial Review.

And the denial of ‘collusion’ between the Education Secretary and an LA somes out of left field. We have neither suggested nor considered that.

On the most appropriate source of a call-in team: logically, if educational benefits are, as the Guidance prescribes, at the heart of any decision to change the circumstances of a school, Education Scotland (the former HMIE) would be the logical home for a ministerial call-in team.

Their current role in the process is, following the consultation period, to reporting on their view of the Educational Benefits Statement advanced by the local authority, with consideration of issues raised during consultation; and approving or not the proposal to close.

The stability of judgment in their performance to date in this role does not exactly offer confidence in their potential performance as a call-in team. But they could be beefed up and scrutinised more rigorously.

The worst case of incompetence or complicity – there are no alternatives – is where, they gave Uyeasound School in Shetland what was the best HMIE report in Scotland, written in such terms that any reader would want to turn the clock back and have a second chance themselves.

HMIE’s report on the proposal and its consultation, submitted prior to Shetland Isles Council taking the decision to close Uyeasound, expressed their concern on the robustness of the Educational Benefits Statement. The decision to close was called-in. HMIE then went on to approve Scottish Ministers’ call-in decision to close of the school and the transfer of its pupils to another school with inevitably a less stellar educational standard.

Newsroom: we are going round in circles on this . I’m not convinced by your argument and you are not by mine.

In practical terms much of this is semantic: if a school closure is not called in then the school closes (short of a legal challenge); if there is a ministerial call in but the proposal is allowed through then the school closes (short of a legal challenge); if the proposal is refused by the Minister then the process goes back to the LA to either abandon, start a new consultation or challenge the refusal. The school stays open in the meantime but it has not been saved. At no time, however, does the Minister close (or indeed save) a school: he merely grants or declines to grant permission for the closure to go ahead based on the LA’s adherence to the Act.

For Hillhead: what they are able to challenge is not the closure of the school, but the failure of the Minister to refuse the decision to close. This was perverse as the proposal was clearly legally incompetent (at least on the grounds of the information you have provided).

I repeat again, there is nothing in the Act that gives the Minister the power to judge on the relative merits of a closure case: he can only decide on whether the process was legally competent. I would personally like the Minister to be able judge on the merits of each case (and have the time to be able to examine each case in detail) but that is not what we have at present.

Regarding collusion, I’m sure the Mr Russell will be pleased that you have stated that it was not your intention to suggest that, as I felt this was exactly what some of the things you have written was suggesting, particularly in the case of Hillhead and the suggestion of collusion between the call in team and Highland Council.

Turning to the less circular part of this discussion: I don’t think HMIE are particularly suitable either and for two reasons:

1: There needs to be an independent examination of the EBS; placing the call in team within HMIE would result in the same conflicts of interest as occurs with the current set up – though possibly more in favour of the schools side of things than the LAs.

2: HMIE suggest themselves that they don’t have the economic expertise to judge on re-distributionist arguments used by LAs to justify closures so they just let these pass. Clearly the solution is to have a small team that contains both educational and economic expertise.

It would, I suspect, be difficult to justify having such a team solely for the purpose of call ins. One of the suggestions ARSN put to the Commission was that there was a need for scrutiny of LA closure proposals BEFORE they go to public consultation. This would adjudge if the proposals were competent under the Act at this stage and this would save a lot of shouting and waste of tax payers money. It would also reduce the numbers of call ins as these would become restricted to matters that arose during the actual formal consultation. The team would need to take a robust approach to challenging LA data supplied as part of the case for closure and good practise would be that extensive pre-proposal consultation will already have taken place. We don’t want just a box ticking exercise in scrutiny.